ByADAM ELMAHREK |April 5, 2010

Monday, April 5, 2010 | Mission Viejo voters who cast their ballots in favor of the “Right to Vote” initiative a June special election might not end up with what they think they’re voting for.

If passed, the initiative would, according to its authors, put any land use change the city makes out to a popular referendum. The initiative is being sold as a way keep out unwanted high-density developments – like the low income housing complexes the city recently commissioned Lennar Corp to build on vacant land near the city’s new Target store.

But the city says the initiative is written in a way that would make a “broad allowance” for affordable housing – which could effectively open the door for developers and state housing bureaucrats to muscle in even more high-density housing.

The disputed language falls under a section of the initiative that exempts city compliance with California “housing regulations” from the initiative’s jurisdiction.

This means if the initiative passes, the city is duty bound to enforce the ordinance, but it’s going to do that in a way that comports with state law, said City Attorney William Curley in a city council meeting last month. And state housing regulations, the city asserts, require it to “promote” affordable housing.

Under the state’s housing density regulation, local governments are required to “provide density increases and reduce regulatory barriers to housing to promote supply and affordability,” according to the state’s Housing and Community Development Department website.

That kind of vague language has the city worried that the initiative is going to force the city into handing over major “planning and control” powers to housing regulators that will favor more affordable housing development.

One of the authors of the initiative, Dale Tyler, says the city is wrong. Tyler said other attorneys offered an “impartial analysis” that offered conclusions at odds with the city’s interpretation.

“If you think a developer, or a regulator, simply folds up a city council – if you think that’s what happens, then you haven’t seen many of these things played out,” Tyler said.

The battle in Mission Viejo is but one example of efforts nationwide to usurp power from city councils through citizen sponsored ordinances that the American Planning Association calls “ballot box zoning” laws.

These initiatives, said one APA official, amount to a “bad idea” that is contrary to the way government works. The problem with leaving zoning decisions ultimately to the voters is that they don’t have the time or resources to invest into a thorough study of the zoning change, said APA Director of Outreach Jeff Soule.

“Are they [the voters] going to study the costs involved, the economics? The neighbors?” Soule said. “It takes the professionalism and puts it in the wrong place.”

Soule also argued that gaps in voters’ understanding ultimately means that special interests, like big business, have too much control over the zoning process. “It’s going to be manipulated by whoever has a dog in the fight,” Soule said.

Tyler says it’s the other way around.

“The city council is too easily bought and paid for,” he said. “I want the citizens to decide.”

Tyler emphasized that he is not against affordable housing and that there are other ways — like buying up uninhabitable foreclosed homes and rehabilitating them — to get at least partial credit toward affordable housing requirements.

Mission Viejo’s “Right to Vote” initiative is modeled after a Yorba Linda law that has the same name. But Yorba Linda’s version doesn’t offer much insight into what may happen in Mission Viejo because it has yet to put any zoning changes out to a referendum.

Nonetheless, Curley said Yorba Linda will face a “firestorm” from the state if voters reject zoning changes that allow affordable housing because Yorba Linda’s law does not include a section that defers to state housing regulations.

Correction: A previous version of this story incorrectly paraphrased Mission Viejo City Attorney William Curley saying that Yorba Linda would face a “firestorm” from the state if voters reject zoning changes that limit affordable housing. Actually, the firestorm would come, Curely said, if voters reject changes that allow affordable housing.

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